Question of hunting on flooded land put on hold

Legislators set aside public access issue

Feb. 26, 2013

Jeff Vonk

Written by

A decade-old dispute that centers on whether sportsmen should have access to flooded private land will have to wait until next year for a solution.

The Legislature last week effectively handed the issue back to the two sides in the fight, who now will work to forge an agreement that produces a new proposal to come before lawmakers next year.

The development comes after the Senate State Affairs Committee unanimously pushed off the legislative calendar to the 41st day of the 40-day session a proposal that would have settled the matter in favor of landowners.

At a committee hearing last week, Jeff Vonk, the Department of Game, Fish and Parks secretary, and Mike Shaw, a lawyer and lobbyist representing landowners, told senators they agreed with the decision to kill legislation. They added that they hope the two sides will reach an agreement.

Climate of distrust

But that might prove challenging, considering the distrust among landowners, sportsmen and the GF&P, and that department’s stout adherence to the principle that the public owns water. That is a point backed up by a 2004 state Supreme Court ruling and it threatens this latest effort at compromise.

“The fact that water is a public trust resource is something I feel very strongly about,” Vonk said. “We can’t start from any place but that place” in negotiating a resolution with landowners. Any retreat from this basic tenet could set legal precedent that potentially threatens public access to water bordering private land throughout South Dakota, Vonk said.

But Jack Hieb, secretary of an organization known as the Nonmeandered Waters Association and the Aberdeen lawyer who represented landowners in the high court ruling, said “the state has got to have a willingness to believe they should give something up. If not, we’re not going to get anywhere” in trying to resolve the issue.

Wet years, new lakes

The issue surfaced in the 1990s when, following a series of unusually wet winters, sloughs, ponds, pastures and crop land in geological closed basins filled with water to depths never before recorded. These flooded properties often joined and became new lakes, and if the water crossed a section line it was considered public.

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Anglers began accessing this new resource where it abutted section lines and public roads.

The influx of fishermen often was unwelcome. Besides the disconcerting notion of seeing boats floating over land on which they were still paying property taxes, some landowners complained about vandalism and littering. Vonk and Chris Hesla, executive director of the South Dakota Wildlife Federation, the most ardent defenders of sportsmen in the dispute, acknowledge such problems.

Conflicts erupted

“I am not in denial that there were conflicts that occurred out there,” Vonk said. “But until the proponents (of HB1135) came forward with the examples they cited, I wasn’t aware there were that many conflicts.”

Some of the smaller waters and waters that butt up against farmsteads and feeding stations for livestock should have limited access, Hesla said. “I don’t think sportsmen should be up close to them.”

Early in the last decade, Hieb and Shaw brought a case on behalf of about 25 landowners into Day County’s 5th Circuit Court to try to get public access barred on the theory that because landowners owned the beds of the new lakes, they also owned the water above them. That is the lawsuit that made it to the Supreme Court.

The justices ruled that the water was indeed a public resource. But their decision concluded that “it is ultimately up to the Legislature to decide how these waters are to be beneficially used in the public interest.”

The public owns the water. But the Legislature should decide on public, recreational use of it.

Room for resolution

Vonk and Hesla said they think there is enough leeway in the ruling to allow the parties to craft a solution that restricts recreational access to the public resource where warranted without harming the principle that the water does belong to the public and should be open for recreational use in most cases.

Vonk sees problems with flooded land in the northeast as so specific that they require a tightly targeted solution. With the proposal that was before the Legislature this year, though, “we are using an ax to do a surgical operation that requires a scalpel,” he said.

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Hieb said he thinks the foundation is in place for a negotiated settlement among the parties only if the Legislature specifically directs GF&P to strike a bargain.

Legislature's role

“The only way I see something getting done is if the Legislature allows Game, Fish and Parks to negotiate directly with individual landowners and develop ad hoc solutions to the problem,” he said.

“All water is public? OK, fine. You can argue that. We argue it’s not. But if you want to solve the problem, let’s use what the Legislature gave us for authority and try to solve it.”

Vonk understands the theory. But there are high hurdles of mistrust to clear before theory becomes practice.

Hesla, for instance, said at least a portion of the opposition to public access to the spreading new lakes represents landowners who simply want to keep what had formerly been private fishing holes before they deepened and spread.

For his part, Hieb doubts the GF&P will be a good actor in any proposed resolution that would empower the commission that governs the agency to decide what bodies of water to keep open and what bodies to bar from recreational use.

“From the standpoint of the people I represent and continue to try to help, that isn’t going to fly,” he said.

So, notwithstanding Vonk’s and Shaw’s optimistic assertion to the Senate committee, the parties are inching towards each other warily. Vonk said he hopes to meet with Hieb to review their respective positions in April.

Hesla said he has been assured the Wildlife Federation will have a role in any discussions. But Hieb won’t welcome it there.

“Point blank, the Wildlife Federation has no interest at this point in any compromise,” Hieb said.

Economic ripples

Also, at least one of the Senate State Affairs members wants the conversation about public access to the new waters broadened to take into account the economic activity associated with new fishing opportunities.

“We have to recognize the tremendous economic impact sportsmen are making into our tremendous fishing and hunting resources,” Sen. Mark Johnston R-District 12, said in the committee hearing.

For all their differences, Hesla and Hieb each said Gov. Dennis Daugaard had a role in the Senate committee killing the bill this year.

“The governor is very hopeful the two sides representing those two competing interests could take some time, sit down and solve the problem,” Tony Venhuizen, Daugaard’s director of policy, said.

Venhuizen also is sensitive to the concerns of Vonk and the Wildlife Federation that the waters association is seeking an overly broad resolution to a specific problem.

“I’m sure they can find a narrower solution,” he said of the parties.

And he thinks a year “is more than enough time” to develop a compromise to bring before the Legislature, Venhuizen said.